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Gellert, Rapahael --- "Redefining the smart grids' smartness. Or why it is impossible to adequately address their risks to privacy and data protection if their environmental dimension is overlooked" [2015] JlLawInfoSci 10; (2015/2016) 24(1) Journal of Law, Information and Science 34


Redefining the smart grids’ smartness. Or why it is impossible to adequately address their risks to privacy and data protection if their environmental dimension is overlooked

RAPHAëL GELLERT*

1 Introduction

Smart meters and grids are innovations in the field of Information and Communication Technologies (‘ICTs’),[1] the goal of which is to enable consumers to reduce their electricity consumption, and hence to protect the environment.[2] Their so-called smartness derives from them being ICT-enabled (as opposed to regular, “normal” or “dumb” electric meters and/or grids). They are an essential component of the European Union’s (‘EU’) “ICT for Energy Efficiency” (‘ICT4EE’) strategy. This strategy is itself an element of the EU’s energy efficiency policy, which underpins most of its environmental protection work. However, as communication technologies, the processing of personal data is at the core of the meters’ functioning. For this reason, the privacy literature has commented on the serious risks they present to the rights to privacy/data protection,[3] not least because their roll out is foreseen in the whole EU.[4]

The aim of this contribution is to explore the environmental aspect of smart grids and smart meters, an issue that has so far been left fallow in the privacy literature. An exploration of the smart grids’ environmental aspect is warranted as it might lead to better privacy protection. In particular, it might allow for a reconciliation to be achieved between two goals that appear to conflict from the outset, namely, environmental and privacy protection.

It can be argued that current solutions protect our privacy only in a sub-optimal way. We take the examples of The Netherlands and Germany where the deployment of smart grids has already started. In both these countries strategies to mitigate the privacy dangers have been put in place. However, as demonstrated below, both these initiatives are not void of shortcomings. This tends to point to a potentially irreducible conflict between smart meters’ goal of environmental protection and the need to protect our privacy. Yet, this potentially irreducible conflict might simply descend from the fact that strategies trying to reconcile these goals only do so from a privacy perspective, leaving the environmental aspect of smart grids unquestioned and untouched.

Because smart grids contribute to environmental protection, it is argued that they promote the principle of sustainable development. An exploration of the principle of sustainable development is therefore warranted. Such exploration will be conducted in two steps. The first step will reveal that sustainable development is not only a principle of environmental protection, but also includes social, and economic dimensions. It therefore encompasses the full spectrum of human rights and hence, requires that they be reconciled. The second step will show that in addition to being a multi-dimensional principle, there is more than one approach to the environmental protection aspect of sustainable development. Drawing from the discipline of sustainability science, a distinction can be drawn between a weak and a strong approach to sustainability. In a nutshell, a weak approach to sustainability argues that the protection of the environment does not require a decrease in our use of natural resources in absolute terms, as long as this can be compensated by technology. A strong approach to sustainability argues on the contrary that in spite of technological progress, there are some limits to the use of natural resources that cannot be trespassed, and that the only meaningful way to safeguard the environment is to contain the use of natural resources within certain limits. On the basis of this distinction, it will be demonstrated that the current energy efficiency approach that smart grids embody is only a weak approach to sustainability.

The fact that smart grids presently take a sub-optimal approach to environmental protection might account for the privacy issues they encounter. In other words, as they currently stand, smart grids will provide neither adequate environmental protection nor adequate privacy protection. This contribution will therefore conclude by suggesting that “real smartness” would be for the grids to implement a strong approach to sustainability, as only this approach might allow for a genuine reconciliation between the goals of environmental protection and privacy/data protection.

2 The alpha and omega of the debate: the conflict between environmental goals and privacy protection

2.1 Smart meters and grids goals and functions

Smart meters and smart grids are innovations the goal of which is to achieve energy-efficiency. [5] According to the European Commission, eco-efficiency can be defined as:

a paradigm shift to change the behavioural patterns of our societies so that we use less energy while maintaining our quality of life; or as a way to improve the environmental performance of products [and] to increase the demand for more sustainable goods while encouraging EU industry to take advantage of opportunities to innovate.[6]

Eco-efficiency can thus be defined as the improvement of products’ energy consumption leading to improved environmental protection. It can be traced back to what some have coined “green growth”.[7]

The European Commission has now long recognised the role that information and communication technologies can play with respect to energy efficiency. Its 2009 Recommendation on Mobilising Information and Communication Technologies to Facilitate the Transition to an Energy-Efficient, Low-Carbon Economy is probably its milestone document.[8] It advocates for the use of ICT4EE in the fields of buildings, transport, electricity grids, and cities more generally.

Smart grids and meters contribute to energy efficiency in different ways.[9] Smart meters are basically a technology for the management of energy consumption, and are therefore meant to lead to behaviour and consumption pattern changes. Most of what they do is provide information concerning the use and price of electricity in real time or at very regular intervals. Several factors influence whether this information actually results in behavioural change. These include the manner in which users receive feedback (eg via the internet or on in-house displays, where in the house the meter is located, etc), or the ease with which users can modify their consumption (through which devices, at home or remotely, etc).[10] However, they also improve the environmental performances of the grid itself insofar as they are the link between the electricity providers and the smart appliances. The automation and remote control of domestic appliances enables electricity providers to balance the electricity load across different times of the day. For instance they can automatically configure appliances depending upon the availability and price of energy, as well as the energy needs of the devices (eg a dishwasher is more flexible than lighting the living room).[11]

Unlike smart meters, which are the component of the smart grid specifically dedicated to the management of energy consumption, the goal of smart grids is to improve the overall environmental performances of the grid. To this end, they can impact upon several elements of the grid. These include:

• Energy generation (through renewable energy sources either from energy distributors or from consumers themselves);

• Energy transmission and distribution (by improving the quality and security of the network in order to avoid losses);

• Energy storage solutions (eg the battery of electric vehicles can be used as a virtual power plant, a kind of localised energy storage system); and

• Energy consumption (this is done through the smart meter, see above).[12]

It is to be noted that the definition of smart grids is in itself problematic, and that many definitions exist. This is because it remains at this stage an emerging technology that is being implemented in a variety of ways in a variety of different places.[13] As the OECD puts it, the smart grid is not a product, but rather, a continuous process of modernising existing electricity grids.[14]

2.2 Privacy and data protection risks

As an information and communication technology, smart grids and meters inevitably process personal information. Such processing is not privacy or data protection risk-free. Kloza, Van Dijk and De Hert argue that the risks stem mainly from the meter as a component of the grid,[15] arguably because it is the device processing data from consumers. These meters constitute a radical change compared to data collection practices occurring under the previous “dumb” meters, the latter being read only infrequently (eg annually). According to the European Data Protection Supervisor (‘EDPS’), smart meters allow for much more detailed readings of energy consumption data, down to the hour, quarter of an hour, or even shorter intervals.[16]

These processing capabilities present important risks. Cuijper and Koops argue that what is at stake here is the inviolability of the home as well as the right to family life (both of which are elements of the right to privacy enshrined in art 8.1 of the European Convention on Human Rights (‘ECHR’), which hallows one’s right to ‘private and family life, his home and his correspondence’), because smart meters make it possible to access data concerning what is taking place within the home.[17] As they put it, ‘smart meters are a new example of technology that makes it possible to see from the outside what takes place inside homes and, all things considered, turns it into the proverbial glass house’.[18] Indeed, much information can be deduced from the meter, either directly or indirectly. One can mention the following: when a person is at home; whether the occupant of the house comes back home accompanied (later arrival at home than usual, and higher energy consumption the morning thereafter); whether a person is absent for a longer period than usual; the types of electronic devices in use; the activities people engage in when using these devices; or even whether the electronic products are new or near the end of their product lives.[19] Research has shown that it is even possible to know what programme or movie is being watched on television.[20]

Another important concern is that of security breaches. Just like any digital device, smart meters can be breached and this may have important consequences if burglars were to find out when the household is empty for instance. This risk is especially acute because the meters allow for remote reading.[21]

In addition to tracking people in their everyday lives, another risk is that of building user profiles, since smart meters can also provide a detailed breakdown of energy consumption over long periods of time, thereby showing usage patterns.[22] These profiles can be built on the basis of individual households, but also on the basis of several, which can be aggregated, and then sorted by area, demographics, etc. These profiles are in turn applied back to a household and its members. For instance, energy suppliers might engage in price discrimination or in any other commercial action that benefits them.[23] They might even remotely deny service (partially or totally) in the case of late payment.[24] Further, as the techniques and algorithms of profiling such as data analysis, data mining, or data cross-matching are opaque, this reinforces the informational asymmetry existing between consumer and energy supplier;[25] the former having little to no clue at all as to what is being done with their data.[26] In addition, profiles can be used for many other purposes. As a matter of fact, information about energy usage is of high value to a number of third parties including commercial companies. Often, these companies already know what goods consumers buy. Smart meter data enables them to know where, when, and how their products are being used. This additional information can then be used for targeted and personalised marketing and advertisement.[27] There are also many other interested third parties, including law enforcement agencies, tax authorities, welfare and social authorities,[28] insurance companies (who can for example establish specific usage requirements or require access to meter data if they are to underwrite their policy), landlords, and employers just to name a few.[29] This raises many risks to the rights to privacy and data protection.

As far as the right to privacy is concerned, it remains to be seen whether these data processing capabilities are compatible with art 8.2 of the ECHR, which spells out the conditions under which it is possible to interfere with the right to privacy. Namely, the interference must be prescribed by law, serve at least one of the public interest goals provided by the article (eg national security, public safety, economic well-being of the country, prevention of disorder or crime, etc), and be necessary in a democratic society and proportionate to the legitimate aim pursued (which includes the test as to whether there is no alternative, less intrusive solution).[30] The answer to these questions depends very much on each specific case, but there is no doubt that the various processing operations the meters render possible put the necessity and proportionality criteria under high pressure as shown in the Dutch case (see below).[31]

As far as the right to data protection is concerned a number of principles are also at risk. For instance, the determination of what counts as a legal basis for the processing of data in the first place;[32] how much data is necessary for performing each task and how long it should be stored for (principles of data minimisation and data retention); in the case of third party access, what safeguards should be in place, if any, in addition to consumer consent, and how can one prevent the re-purposing of such data; and what security measures, such as data breach notification mechanisms, should be put in place? Finally, how can data subjects exercise their rights adequately, and in particular how is meaningful transparency to be achieved (which directly affects the quality of the consent one can give)?[33]

3 The mitigation measures taken

This section will focus upon the Dutch and German attempts to address these privacy issues. The Dutch case is an interesting example of how to strike a proper balance between the need for privacy protection and the environmental objectives of the smart meters. The German case is interesting insofar as Germany has implemented arguably the most advanced privacy by design measures. Yet, both cases present shortcomings, so that it appears quite difficult to find a way to uphold both citizens’ privacy and the meters’ environmental goals.

3.1 The search for balance in the Netherlands

3.1.1 The first project

Cuijpers & Koops recount the introduction of smart meters in The Netherlands.[34] In 2008, two smart grids bills (the Bill transposing EC Directive 2006/32 on Energy Efficiency, and the Bill amending the Electricity Act 1998 and Gas Act to improve the operation of the electricity and gas markets) provided for the mandatory introduction of smart meters in every Dutch household as well as for hourly measurements of gas and quarter-hourly measurements of electricity to be transmitted directly to network operators. These measurements would then have to be forwarded to the energy supplier who would use the data to provide consumers with detailed information regarding their energy consumption so that they could modify their behaviour in the interests of greater energy efficiency.[35] Following the Dutch data protection authority’s recommendation, the Minister of Economic Affairs amended the proposal so that network operators can only transmit daily measurements to energy suppliers, with consent required for finer grained measurements (ie hourly and quarter-hourly).

In the wake of the adoption of the Bills by the Second Chamber, the Dutch Consumer Union commissioned a critical study that highlighted two main issues.[36] Both the measurements frequency and communication thereof, as well as the mandatory nature of the roll out were not deemed necessary in a democratic society in accordance with the test contained in art 8.2 of the ECHR.[37] They thus violated the Convention.[38] The Commission concluded by saying that less privacy intrusive alternatives should be found without jeopardising environmental goals. It referred to alternatives that process less data, or that process anonymous or aggregated data for instance. This led to the rejection of the proposed Bills by the First Chamber and to subsequent modifications.[39]

3.1.2 Revised Version

The modified version of the Bill, issued in 2011, ends the compulsory nature of the meters (consent is required). More importantly for our discussion, the level of personal data processing has been critically diminished. In a nutshell, the standard measurement regime does not provide for daily measurements to be transmitted to suppliers and operators. Detailed measurements of this kind can be transmitted if, and only if, consumers have consented thereto.[40]

3.1.3 Privacy proof?

Referring to the proportionality test of art 8.2 of the ECHR according to which any measure interfering with the right to privacy should be ‘necessary in a democratic society’, Cuijpers & Koops salute the abolition of these very detailed readings, which, according to them, has taken ‘the largest privacy sting out of the Dutch law’.[41] Yet, one should not conclude that the current versions of the Dutch Bills are privacy compliant merely because the most obvious violations of art 8 of the ECHR have been addressed. We do not dispute the abandonment of obviously unnecessary data processing that consisted of the transmission of very detailed personal data to grid operators.[42] However, this does not put an end to the measurements as such, which are a critical element of energy efficiency.[43]

Referring to another component of the proportionality test of art 8.2 of the ECHR (namely the substitution principle), Cuijpers & Koops remark at several points that it is necessary to ‘look at alternatives that are less privacy-invasive but that still serve the intended purposes of smart metering’.[44] According to them, such alternatives are to be found in privacy by design measures to be applied to the remaining necessary processing. If it is indeed true that some of the data processing is obviously unnecessary, additional privacy relevant questions remain. One such relevant question concerns the way to access the data. Ideally, this will be done through an in-house display. However, the value of such a solution is doubtful in the face of other settings that imply third party access. This is the case for Internet access, which presents undeniable advantages for consumers. This is also the case for other functionalities of the grid, including dynamic pricing and/or load balancing, both of which require that measured consumption data be fed back into the grid.

The Dutch case therefore points to a conflict between privacy protection and the environmental goal that cannot be totally reconciled. Even when unnecessary processing is discarded, processing that potentially violates art 8 of the ECHR remains. Further, from this privacy centric perspective, the only alternatives envisaged are privacy by design initiatives that focus on minimising data flows. Yet, as the German case perfectly epitomises, this approach presents shortcomings too.

3.2 German design

The Dutch case demonstrates that there might be an irreducible conflict between the privacy and environmental goals of smart grids. The German case will show the limits of privacy by design approaches.

3.2.1 The design and its benefits

The following analysis is based on Pallas’ description of the German system and in particular, on his description of the attempts made in the amended German energy legislation to introduce elements of privacy by design for smart metering.[45] The German approach intends to implement privacy by design in smart meters by granting individuals control over their data and by implementing the data minimisation principle.[46]

This is achieved mainly through an additional technical element known as the “smart meter gateway”, which acts as a buffer between the individual’s smart meter and the grid operators. This additional technical element has several consequences for the electricity grid structure. Instead of the chain-formed communication model used in other countries,[47] the German model is star-shaped. This allows for end-to-end communication between the gateway (ie the user) and market actors, and thus for the use of privacy enhancing technologies such as encryption and pseudonymisation.[48]

Measured data is stored locally within the gateway, which grants access to the different actors on the sole basis of their data needs (ie receiver specific access profiles). This is critical for the execution of access profiles. Each actor has specific data needs in terms of data forms, purposes, and so on. For instance, the distribution system operator (‘DSO’) may have a need for real time data for its network maintenance mission, but it suffices that such data be in aggregated form.[49] As a consequence, these access profiles define what data is to be transferred to whom, at what frequency, after what type of pre-processing, using what type of encryption (and other privacy enhancing technologies), and so on. Such an approach upholds both the data minimisation and control principles.

Because measured data is locally stored, the gateway can perform pre-processing operations, which greatly contributes to data minimisation.[50] Taking the case of highly dynamic, weather-dependent pricing, the gateway will be able to perform the necessary tariffing.[51] This means that suppliers will only need aggregated data for their billing purposes no matter how dynamic the pricing is.

3.2.2 Limits of design

These privacy by design elements are without doubt a step in the right direction. However, as Pallas shows they are far from flawless.[52]As far as the local pre-processing is concerned, Pallas indicates that it does not take into account some probable future modi operandi of the electricity grid, or some of its additional energy efficiency functionalities. For instance, network fees currently depend solely on actual consumption, but if they were also rendered dynamic so as to optimise the grid’s functioning, it is doubtful whether the gateway has the necessary local pre-processing capacities to facilitate this. Similarly, as far as the supplier is concerned, current pre-processing functions allow for billing on the basis of aggregate data of dynamic consumption patterns. However, one of the other aims of the grid is load balancing of the energy supply. Yet, without real time feedback of consumption data this exercise is not possible. At present there is still uncertainty as to whether the gateway has the capacities for this type of processing, although the answers tend to be negative.[53] If the need for local pre-processing is real as far as control over one’s own data is concerned (there is little to no possibility of control once the data has left one’s own device), the model is flawed as far as the other functions and needs of the smart grid are concerned.

Load peak balancing is problematic here too. The main issue is that it requires data to be fed back into the grid, which both the supplier and the DSO need. Under the local gateway model, the transmission system operator (‘TSO’) would be responsible for receiving the data and feeding it back into the system. Beyond the issue of knowing whether it is possible to feed aggregate data or not, another important area of concern is that the TSO would receive massive amounts of data to be redistributed. So far the only alternative would be to entrust the DSO (who operate at local level, see above) with the data, but that would mean adopting the chained communication model, which is in direct contradiction with the German end-to-end communication model.[54]

3.3 The impossibility of reconciling privacy and environmental protection

These two national experiences indicate that the implementation of current smart meter technology still puts citizens’ privacy at risk, so that it is doubtful whether privacy can be reconciled with the environmental goals of the grid. In particular, the Dutch case demonstrates that it is possible to do away with manifestly unnecessary processing in pursuit of both privacy and environmental protection. However, the Dutch have carefully avoided answering the very tricky question as to whether the remaining processing is proportionate and necessary. Alternatives based on privacy by design suggest a negative answer to this question. Yet, the German case shows us the limits of privacy by design approaches. Not only do they have several shortcomings on a principle and conceptual basis, but their adequate implementation remains uncertain and subject to many contingencies.

Building upon Burkert’s remark that the best data (and privacy) protection is no data processing at all,[55] an alternative solution must be developed. This solution should conform to the spirit of the substitution principle in art 8.2 of the ECHR, which requires states to find alternatives that go beyond simple diminution of the amount of data processed (and/or its anonymisation, aggregation, etc), and instead to look for another articulation of the privacy and environmental goals that might permit their genuine reconciliation.[56] In our opinion this entails looking at the environmental side of things.

4 The quest for alternatives through a detour in environmental law: the principle of sustainable development

4.1 Introduction

We contend that the principle of sustainable development can be instrumental in finding better privacy preserving alternatives. This entails two steps. The first step involves defining the principle. This definition will show that sustainable development is not limited to environmental protection, but that on the contrary, it has three dimensions: environmental; social; and economic. As a consequence, sustainable development also encompasses the protection of the full spectrum of human rights. This is evident from the following discussion concerning the manner in which the EU has upheld the principle. This discussion also shows that in addition to providing a holistic approach to the principle, the EU relies solely on energy efficiency for implementing the environmental protection aspect.

The second step consists of a critical look into the “energy efficiency paradigm”. This is done through the study of one of the sustainable development disciplines known as sustainability science. Sustainability science shows that it is possible to distinguish between strong and weak approaches to sustainability, and that energy efficiency amounts to only a weak approach to sustainability.

4.2 Definition of the principle: from the Bruntdlandt Report to the United Nations

4.2.1 History of the principle

Sustainable development first appeared in the 1987 Bruntdlandt Report, and was defined as ‘[economic] development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.[57] Such a broad definition is bound to create controversy and multiple understandings.[58] Therefore, a useful way to better appraise the concept is to look at the way the United Nations (‘UN’) have institutionalised and defined sustainable development.

The 1972 Stockholm Declaration on the Human Environment can be considered as the precursor of sustainable development,[59] which received official recognition for the first time in the 1992 Rio Declaration on Environment and Development (‘Rio Declaration’).[60] Two Principles of the Rio Declaration are worthy of attention. Principle 1 provides that human beings are at the centre of sustainable development, which entitles them to a healthy and productive life in harmony with nature.[61] Principle 3 reflects the Bruntdlandt Report approach, namely that ‘the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations’.[62] The Rio Declaration was accompanied by an action plan known as the Agenda 21 (with 21 standing for 21st century).[63]

In the following decades, the UN has adopted two documents as official follow-ups to the Rio Declaration.[64] The first is the Johannesburg Declaration on Sustainable Development, which is the document resulting from the 2002 World Summit on Sustainable Development (‘WSSD’) held in Johannesburg and marking the 10th anniversary of the Rio Declaration (as well as evaluating the progress made since then on the basis of the Agenda 21).[65] The second is The Future We Want Resolution, which is the result of the United Nations Conference on Sustainable Development (‘UNCSD’), also known as Rio 2012, Rio+20, or Earth Summit 2012, the goals of which were largely similar to the Johannesburg Summit (ie assessing progress and addressing new challenges).[66]

4.2.2 Sustainable development is a multidimensional principle

Sustainable development is multidimensional. In particular it has three constitutive dimensions: environmental; social; and economic.[67] This was already quite clear in the Rio Declaration. Principle 5 for instance provides that the eradication of poverty is an indispensable requirement for sustainable development (social dimension); Principle 8 pledges to ‘reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies’ (economic dimension); and Principle 4 states that ‘environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it’ (environmental dimension).[68]

The latest UN sustainable development document, The Future We Want Resolution, provides some additional insight as to the content of the principle. First, it reiterates the overarching goals and essential elements of sustainable development, which consist of ‘poverty eradication, changing unsustainable and promoting sustainable patterns of consumption and production, and protecting and managing the natural resource base of economic and social development’.[69] However, it goes further, insofar as, building upon the human centric dimension of Principle 1 of the Rio Declaration, it argues that sustainable development is also about ‘a world that is just, equitable and inclusive’.[70] The Future We Want Resolution therefore argues that respect for all human rights (as well as the rule of law and democracy) is at the core of the principle of sustainable development.[71] This includes both second generation human rights,

such as the right to food or to sustainable living, and first generation human rights as epitomised by the reaffirmed commitment to the Universal Declaration of Human Rights.[72]

4.3 The EU’s definition of sustainable development is multidimensional and based upon energy efficiency

This section explores the manner in which the EU has implemented sustainable development, through its sustainable development strategy (‘SDS’).[73] The EU’s SDS describes the sustainable development principle as:

an overarching objective of the European Union... [which consists of] safeguarding the earth's capacity to support life in all its diversity and is based on the principles of democracy, gender equality, solidarity, the rule of law and respect for fundamental rights, including freedom and equal opportunities for all.[74]

In order to render this broad definition more workable, the EU has broken it down into four key objectives, ten policy principles, and seven key challenges.[75] In a nutshell, the four key objectives represent the actual content of the principle. Namely they are: environmental protection,[76] social equity and cohesion (ie respect for all human rights),[77] economic prosperity,[78] and the meeting of international responsibilities.[79]The ten policy principles are relevant principles to be applied in reaching the four key sustainable development objectives. They include among others: promotion and protection of fundamental rights; solidarity within and between generations; open and democratic society; involvement of citizens; and involvement of businesses and social partners.[80]

Finally, the seven key challenges represent concrete areas of action for the principle of sustainable development to be implemented. Namely they are: climate change and clean energy; sustainable transport; sustainable consumption and production; conservation and management of natural resources; public health; social inclusion; demography; migration; and global poverty. The 2009 review of the strategy adds additional challenges such as energy security, adaptation to climate change, food security, land use, and sustainability of public finances.[81]

The analysis of the EU’s SDS is interesting in two respects. First, it is based upon energy efficiency. This appears very clearly when analysing the key objectives dealing with environmental protection. We observe that eco-efficiency is at the forefront and is instrumental to achieving the challenges of climate change and clean energy, conservation of natural resources, etc.[82] In this regard, smart grids fit perfectly within several of these key challenges, and it is therefore no wonder that they too are based upon energy efficiency. Second, it follows that the EU’s conception of sustainability is quite broad and far-reaching as it encompasses the three constituent domains of sustainability referred to earlier (environmental, economic, and social). Like the UN, the EU considers that sustainable development is about both environmental, and economic and social justice, thereby reflecting concerns addressed by so-called first and second generation human rights. It follows that sustainable development is as much about environmental protection as it is about safeguarding all fundamental rights. Environmental protection and privacy thus need to be reconciled. Yet, as discussed above, this reconciliation is far from obvious. Therefore, the next section of the paper will analyse sustainable development as a means to critically analyse energy efficiency and its contribution to environmental protection.

4.4 Sustainable development as a means for a critical look into energy efficiency: strong vs weak sustainability

As we have seen above, the notion of sustainable development is a very open one, and is susceptible to multiple and competing understandings. The EU has chosen to turn to energy efficiency to implement the environmental aspect of the principle. The question we ask here is whether energy efficiency is an adequate implementation of sustainable development. Current privacy violations indicate that this is not the case.

We turn to the field of science and technology studies (‘STS’), and in particular to the emerging discipline of sustainability science in order to substantiate the notion of sustainable development.[83] The goal of sustainability science is to interrogate whether, and if so how, science can contribute to sustainable development. We consider this standpoint relevant since smart grids are a scientific and technological innovation for sustainable development.

Sustainability science makes the claim that sustainable development is a value-loaded notion, which cannot escape ethical discussions.[84] In particular, the normative vision of sustainable development as formulated in the Brundtland Report (see above), though very abstract, puts the emphasis upon the notions of needs and limitations. The concept of needs refers to that of the future generations and the idea that their needs should be fulfilled in the same fashion as ours. Very much linked to this is the concept of limitations, which suggests that the Earth’s resources are finite and that we should therefore limit our behaviours in order to take account of these limits.[85]

Putting the emphasis on needs and limitations allows for a reframing of sustainable development as “the maintenance of capital”. It is generally agreed that there are two types of capital: natural capital and human capital (which is itself composed of cultural, institutional, social, technological, and economic capital). From this perspective, sustainability can vary across a range of options: weak, intermediate, and strong sustainability. Each position embodies a different stance as to what constitutes an equitable use of capital (that is, to what extent can we use resources and capital and still preserve the capital that is essential for safeguarding the environment?).[86]

Weak sustainability assumes full substitutability between natural and human capital. Under this assumption neither the intrinsic limits of Earth’s resources, nor the value of certain natural resources for the appropriate functioning of basic ecosystems are taken into account. This approach leads to a development policy focused on the exploitation of natural resources in a way that allows the income gained from the exploitation thereof to remain sustainable through new capital investments in spite of natural resources depletion.[87] In other words, it posits that the full depletion of natural resources is not an issue as long as it is offset by investments in new scientific, technological, and economical capital. Dedeurwaerdere gives the example of compensation for soil fertility loss resulting from intensive agricultural practices.[88] In order to compensate for these losses, more efficient forms of farming such as mechanisation, irrigation and fertilisers are deployed. However, these technological substitutes rely themselves on non-renewable resources that are at the heart of the soil depletion in the first place.

Conversely, strong sustainability acknowledges that ‘not all the functions of natural capital can be replaced by technological/economic capital and... there are critical levels beyond which substitutability is no longer possible.’[89] This is the case for instance when critical thresholds are reached for the functionality of living systems (eg fisheries’ ecosystems being threatened by intensive fishing); when critical thresholds are reached for the assimilation of waste products (eg greenhouse gasses in the atmosphere); or even when the exhaustion of natural resources or environmental degradation beyond a certain threshold would reach so-called “tipping points” of irreversible degradation, beyond which the Earth’s ability to sustain us and other species could be threatened.[90]

So, what is the use of this distinction between strong and weak sustainability for our analysis of energy efficiency? Proponents of sustainability science argue that energy-efficiency is an embodiment of weak sustainability. They evidence this statement by demonstrating that it is based upon the assumption that ‘economic growth can be decoupled from material throughput through decrease of natural resources use in production systems, in particular by technical innovation’.[91]Put in other words, energy-efficiency implements weak sustainability because it assumes that technological innovation coupled with behavioural change will ensure that continued growth and use of natural resources are compatible with environmental protection. It thus assumes that a continuing exploitation and decrease of natural capital is sustainable insofar as it can be perfectly substituted by a continued growth in human capital.[92]

It appears from the observation above, however, that it is highly doubtful that energy-efficiency can properly implement sustainable development. Indeed, in order to have meaningful sustainable development, understood as the maintenance of natural capital, what matters is the absolute reduction of the use of natural resources, that is, the absolute decoupling of human and natural capital. This is the only way to ensure that critical thresholds are not trespassed, and thus, to safeguard natural capital. However, by promoting full-substitutability, energy efficiency leads to a relative decoupling of natural and human capital, meaning that the extent of the substitution between natural and human capital bears little to no influence on the actual use and depletion of natural resources.

In order for absolute decoupling to occur under the energy-efficiency scheme, the rate of eco-efficiency improvement must be large enough to offset the growth rate of natural resources use. However, evidence suggests that (relative) decoupling of economic growth from natural resources uses shows mixed results at best.[93] In the case of smart grids, early research has shown that the energy efficiency gains are not obvious at all. They depend upon a number of factors such as whether consumers have adequate access to the right type of consumption information, and the consumers’ personal propensity towards saving energy. Further, even when energy efficiency gains are made, the most optimistic figures indicates gains of up to 15%.[94] Arguably, this is far from enough in order to achieve absolute decoupling.

Furthermore, in order for energy efficiency to contribute to the diminution in the use of natural resources, the efficiency gains should be “captured” and “dedicated” to reducing the absolute use of resources. Yet, the market is structured and oriented in a way that ensures that efficiency gains will be dedicated to further growth, in an attempt to stimulate increased consumer demand. This process does not factor in the intrinsic limits descending from critical thresholds of natural capital.[95] Such an observation certainly applies to smart grids, which energy suppliers and operators see as a new market bearing promises of increased profitability.[96]

Finally, energy efficiency gains can paradoxically also result in increases in energy use at the individual level through the so-called rebound effect. For example, a 5% improvement in vehicle fuel efficiency might only result in a 2% drop in fuel use, because the increased efficiency encourages drivers to go faster or use their car more often than they previously used to.[97] In the case of smart grids, some have observed a sort of “smart grid fatigue” where, after a while, consumers abandon the “virtuous” energy saving behaviour upon which smart grids are predicated. This leads to actual increases in energy consumption, triggered by the fact that the smart meter, as a complex data processing device, consumes more energy than the traditional dumb meter.[98]

These energy-efficiency shortcomings lead Dedeurwaerdere to assert that there is an important need to revise the broadly consensual role of scientific research in support of sustainable development. The latter is often, if not always, focused only on resource substitution by technology, increases in energy productivity, and emissions of wastes and pollution reductions all of which are akin to energy-efficiency, and therefore unable to bring about meaningful environmental protection.[99]

5 Conclusions: redefining the grid’s smartness

The question this conclusion begs is whether smart grids’ environmental dimension, and in particular sustainable development, can really be instrumental in devising a smarter grid that adequately addresses the risks to the rights to privacy and data protection.

On the one hand, sustainable development is a holistic notion that urges for reconciliation between the goals of environmental and human rights protection. On the other hand, such reconciliation can be achieved through a critique of energy efficiency, which sustainable development renders possible through sustainability science. It shows that energy efficiency will lead to weak sustainability, and hence to very mixed results at best.

The preceding analysis of energy efficiency and its shortcomings casts a new light on smart grids and their purported smartness. From this vantage point they are a perfect embodiment of scientific innovation seeking to offset resources depletion through increased technological performance. In this particular case, it can be argued that the meters’ and grids’ personal data needs (ie their “smartness”) are the necessary backbone of their energy efficiency function. Calls for increased data granularity should therefore come as no surprise (see above, section 3.1). However, energy efficiency’s shortcomings lead us to argue that current smart grid technology will achieve neither environmental protection nor privacy protection.

This critical observation allows us to challenge the energy efficiency paradigm, which is the fundamental and unquestioned rationale justifying the processing of large amounts of personal data at the heart of the smart grid technology. It also opens the door to alternatives in the spirit of art 8 of the ECHR, which go beyond energy efficiency. Something privacy-based alternatives (even privacy by design) have been unable to render possible and thinkable. Instead of focusing on how to limit the amount of data processed, how to limit access to such data, how to aggregate it, and so on, this approach offers a very sound rationale for arguing against the need for data processing at all.

So, what alternatives does sustainable development offer? The point is not to go back to the dumb meter, which certainly does not better contribute to environmental protection. On the contrary, through sustainability science and its distinction between strong and weak sustainability, sustainable development allows for a redefinition of the grid’s smartness along the lines of its own criteria of strong and adequate environmental protection. Hence, one could argue that the grid’s smartness would reside in the implementation of a strong approach to sustainability.

Exactly what such redefined smartness would look like falls beyond the scope of the present contribution.[100] Nonetheless, it would have to take the properties of strong sustainability into account. As a consequence, any approach that genuinely strives to deliver absolute reductions in the use of natural resources would have to take into account the dynamic nature of strong sustainability. This includes the difficulty of measuring thresholds beyond which irreversible degradation of natural capital occurs. It also includes the fact that sustainable development has a strong ethical component that requires broad participation, particularly of concerned parties. This also means that strong sustainability embodies a stance that is opposed to purely technological, “silver bullet” solutions, which can be applied in a standardised and linear manner across the board. In this sense, a strong approach to sustainability entails greater levels of complexity. However, and paradoxically, it represents the best chance to achieve real and meaningful results in data/privacy protection and environmental protection.


* PHD Candidate at Vrije Universiteit Brussel, Faculty of Law, Research Group on Law, Science, Technology and Society. This research has been undertaken in the context of the national research project &#82[1]A Risk to a Right? Exploring a new notion in data protection law’, funded by the Research Foundation – Flanders (FWO) (G046815N).

1 It is important to distinguish between smart grids as such, and smart meters, which are one of the smart grids’ technologies (along with intelligent storage devices for instance), and which the European Union sees as crucial and indispensable for the deployment of smart grids: OECD, ‘ICT Applications for the Smart Grid - Opportunities and Policy Implications’ (OECD Digital Economy Papers No. 190, OECD Publishing, 10 January 2012) 10. For further development of this distinction, see below section 2.1. Because meters are part of the grids, and because our reflections apply to both, we use the two terms indistinctively throughout the text. Some even distinguish another component of the smart grid, the smart metering system, which is the infrastructure processing data from a smart meter: Dariusz Kloza, Niels Van Dijk and Paul De Hert, ‘Assessing the European Approach to Privacy and Data Protection in Smart Grids. Lessons for Emerging Technologies’ in Florian Skopik and Paul Smith (eds), Smart Grid Security: Innovative Solutions for a Modernized Grid (Syngress, 2015) 11, 12.

[2] There are other goals associated with the smart grids, such as user empowerment, better energy prices, better grid management, and economic advantages for energy suppliers and operators notably in terms of infrastructures, and diminutions of process costs: Kloza, Van Dijk and De Hert, above n 1, 15-16; Cédric Clastres, ‘Smart Grids: Another Step towards Competition, Energy Security and Climate Change Objectives’ (2011) 39 Energy Policy 5839, 5403. However, they are all related to energy-efficiency, which remains the paramount objective: European Parliament and Council Directive 2012/27/EU of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC [2012] OJ L 315/1.

[3] We use the expression “privacy/data protection”, or either term indistinctively because we believe that the two rights are different, but overlap nonetheless: Raphaël Gellert and Serge Gutwirth, ‘The Legal Construction of Privacy and Data Protection’ (2013) 29 Computer Law & Security Review 522, 522–530.

[4] European Parliament and Council Directive 2009/73/EC of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC [2009] OJ L 211/94; European Parliament and Council Directive 2009/72/EC of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC [2009] OJ L 211/55.

[5] It is to be noted that “energy-efficiency” is sometimes replaced by synonymous expressions such as “eco-efficiency”, or even “resource-efficiency”. We therefore use these terms interchangeably.

[6] Commission Recommendation of 9 October 2009 on Mobilising Information and Communications Technologies to Facilitate the Transition to an Energy-Efficient, Low-Carbon Economy [2009] C(2009) 7604 final, 2, 2-3.

[7] OECD, Greener and Smarter - ICTs, the Environment, and Climate Change (September 2010) OECD, 6 <http://www.oecd.org/site/stitff/45983022.pdf> .

[8] Commission Recommendation of 9 October 2009 on Mobilising Information and Communications Technologies to Facilitate the Transition to an Energy-Efficient, Low-Carbon Economy [2009], C(2009) 7604 final, 2, 3, 8.

[9] OECD, above n 7, 7.

[10] Ibid 37.

[11] Ibid 31.

[12] Ibid 31–33.

[13] Smits et al, ‘Working Paper on the State-of-Art of Assessments of the Societal Impacts of Smart Grids (Deliverable No 6.1, EU-FP7 EPINET Project, 31 October 2012) 6-9.

[14] Hence the OECD refers to the definition of the International Energy Agency, which defines smart grids as an

electricity network that uses digital and other advanced technologies to monitor and manage the transport of electricity from all generation sources to meet the varying electricity demands of end-users. Smart grids co-ordinate the needs and capabilities of all generators, grid operators, end-users and electricity market stakeholders to operate all parts of the system as efficiently as possible, minimising costs and environmental impacts while maximising system reliability, resilience and stability.

OECD, above n 1, 10. From this perspective, the smart grid is less a technology in itself than a combination of different technologies (including smart meters, intelligent storage devices, sensors and communication networks), the point being to circulate electricity and information flows in a bi-directional manner so as to optimise energy supply, demand, and storage: OECD, above n 7, 32. The provisional and indeterminate nature of the grid seems to comfort other analyses that argue that smart meters are not necessarily indispensable to smart grids. However, we base ourselves on the implementation of smart meters at EU level where they are present as one of smart grids’ constitutive elements.

[15] Kloza, Van Dijk and De Hert, above n 1, 16.

[16] European Data Protection Supervisor, Opinion of the European Data Protection Supervisor on the Commission Recommendation on preparations for the roll-out of smart metering systems (8 June 2012) European Data Protection Supervisor, 5 <https://secure.edps.europa.eu/EDPSWEB/webdav/shared/Documents/Consultation/Opinions/2012/12-06-08_Smart_metering_EN.pdf>.

[17] Colette Cuijpers and Bert-Jaap Koops, The “Smart Meters” Bill: A Privacy Test Based on Article 8 of the ECHR Study Commissioned by the Dutch Consumers’ Association (October 2008) Tilburg Institute for Law, Technology, and Society, 14 <https://skyvisionsolutions.files.wordpress.com/2014/11/dutch-smart-meters-report-tilt-october-2008-english-version.pdf>.

[18] Ibid 22.

[19] Ibid 17, 21, 22.

[20] Ulrich Greveler, B Justus and D Loehr, Multimedia Content Identification through Smart Meter Power Usage Profiles (2012) Ruhr-Universität Bochum 5-7, <http://www.nds.rub.de/media/nds/veroeffentlichungen/2012/07/24/ike2012.pdf> .

[21] European Data Protection Supervisor, above n 16, 5.

[22] Ibid. For example: what time people sleep and wake up; whether they have guests during their leisure time; how often they do their laundry; if someone uses a specific medical device or a baby-monitor; whether someone has developed a specific medical condition; if anyone suffers from insomnia; and even whether married couples sleep in the same room.

[23] Ibid.

[24] Cuijpers and Koops, above n 17, 17.

[25] European Data Protection Supervisor, above n 16, 6.

[26] Gloria González Fuster and Amandine Scherrer, Big Data and Smart Devices and Their Impact on Privacy, (September 2015), Study PE 536.455 to the Civil Liberties, Justice and Home Affairs Committee of the European Parliament 21, <http://www.europarl.europa.eu/RegData/etudes/STUD/2015/536455/IPOL_STU(2015)536455_EN.pdf> . Gonzalez and Scherrer have made this remark in the context of big data uses for the so-called Internet of Things (IoT), of which smart grids are seen as an important component. See also Cuijpers and Koops, above n 17, 25.

[27] European Data Protection Supervisor, above n 16, 5–6.

[28] Belgium for instance has recently adopted legislation empowering utilities providers to forward metering data of those receiving social benefits to those social services providing the benefits: Loi modifiant la loi-programme (I) du 29 mars 2012 concernant le contrôle de l'abus d'adresses fictives par les bénéficiaires de prestations sociales, en vue d'introduire la transmission systématique de certaines données de consommation de sociétés de distribution et de gestionnaire de réseaux de distribution vers la BCSS améliorant le datamining et le datamatching dans la lutte contre la fraude sociale, [Law amending the law of 29 March 2012 concerning the control of the abuse of fictitious addresses by recipients of social benefits, with a view to introduce the systematic transmission of certain metering and grid data to the Central Bank of Social Security in order to improve data mining and datamatching in the fight against social fraud], (Belgium), 27 May 2016, OJ, 2016, No. 2016202481.

[29] European Data Protection Supervisor, above n 16, 6; Cuijpers and Koops, above n 17, 26.

[30] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (‘ECHR’), Art. 8.2 provides that:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[31] Cuijpers and Koops, above n 17, 25–34; Kloza, Van Dijk and De Hert, above n 1, 23.

[32] Rainer Knyrim and Gerald Trieb, ‘Smart Metering under EU Data Protection Law’ (2011) 1 International Data Privacy Law 121, 121; European Data Protection Supervisor, above n 16, 10–11.

[33] European Data Protection Supervisor, above n 16, 12–15; Article 29 Data Protection Working Party, 'Opinion 12/2011 on smart metering' (Working Paper No 183, 4 April 2011), 16-21; González Fuster and Scherrer, above n 26, 21. More broadly, see also Mireille Hildebrandt, Report for the Smart Energy Collective, Legal Protection by Design in the Smart Grid, (February 2013) 30-44 <https://pilab.nl/wp-content/uploads/2013/05/KEM-64P707-BRO-LPbD-in-SmartGrid_A4_FC_v4.pdf>

[34] Colette Cuijpers and Bert-jaap Koops, ‘Smart Metering and Privacy in Europe: Lessons from the Dutch Case’ in Serge Gutwirth et al (eds), European Data Protection: Coming of Age (Springer, 2013) 269, 278–281.

[35] It is to be noted that in addition to these measuring and communication functionalities, the meter also included signalling, switching, and regulatory functions respectively allowing operators to detect energy quality remotely, remotely switch the energy facilities (eg fraudulent customers), and add functions to the meters: ibid 279.

[36] Cuijpers and Koops, above n 17, 3.

[37] ECHR art 8.1 establishes the right to privacy, whereas ECHR art 8.2 provides the conditions under which interferences are lawful.

[38] In addition, too little evidence was provided as to the necessity of the remote switching and signalling functions.

[39] Cuijpers and Koops, above n 34, 281.

[40] This also holds true for more fine-grained measurements.

[41] Cuijpers and Koops, above n 34, 284.

[42] Although some representatives of Dutch grid operators go further in saying that meters should be allowed to transmit measurement data to grid operators on a quarterly-hour basis. Any lower frequency would render the energy saving function void.

[43] What Cuijpers & Koops refer to as ‘private data exported through the interface to the end user’: Cuijpers and Koops, above n 34, 287.

[44] Ibid 289.

[45] Frank Pallas, ‘Beyond Gut Level - Some Critical Remarks on the German Privacy Approach to Smart Metering’ in Serge Gutwirth et al (eds), European Data Protection: Coming of Age (Springer, 2013) 313, 319–321.

[46] Ibid 325.

[47] Which is based upon a linear chain of processing where the data is first transmitted to the metering point operator who collects long term measurement values. He then passes it to the local distribution system operator who performs pre-processing operations (as well as archiving, and generation of aggregated load graphs). The distribution system operator then passes on this data either to the transmission system operator for system maintenance (including load balancing), or to the supplier for billing purposes.

[48] Although this might require the intervention of an intermediary grid operator in order not to track back the data: Pallas, above n 45, 328. On the fact that Privacy Enhancing Technologies (‘PETs’) were first dealing with anonymity see: Herbert Burkert, ‘Privacy-Enhancing Technologies: Typology, Critique, Vision’ in Philip E Agre and Marc Rotenberg (eds), Technology and Privacy: The New Landscape (The MIT Press, 1997) 125, 126–129.

[49] The same holds true for the transmission system operator’s (‘TSO’) duty of load balance.

[50] One must also add the complete ex ante definition of legitimate data processing within the law: Pallas, above n 45, 327.

[51] This is done by summing up all consumption data for each tariff and by submitting aggregated values of the tariffs to the supplier on a monthly basis.

[52] Pallas, above n 45, 333-338.

[53] Ibid 336.

[54] Ibid 341–342. Pallas hints at solutions but also notes their potential shortcomings. Setting up data trustees who would be in charge of all the necessary pre-processing (and be subject to all existing protections) would overcome the difficulties associated with localised processing whilst still retaining possibilities for informational control. However, such trustees would have to deal with massive centralised data pools, unless several of them were to exist.

[55] Burkert, above n 48, 136.

[56] On the proportionality test of ECHR art 8.2, see Paul De Hert, ‘Balancing Security and Liberty within the European Human Rights Framework. A Critical Reading of the Court’s Case Law in the Light of Surveillance and Criminal Law Enforcement Strategies after 9/11’ (2005) 1 Utrecht Law Review 68, 91-94; Katja de Vries et al, ‘The German Constitutional Court Judgment on Data Retention: Proportionality Overrides Unlimited Surveillance (Doesn’t It?)’ in Serge Gutwirth et al (eds), Computers, Privacy and data protection: an Element of Choice (Springer, 2011) 3, 19-22.

[57] World Commission on Environment and Development, Our Common Future (Oxford University Press, 1987), 27.

[58] A parallel can be made between privacy and sustainable development insofar as both notions are very broad, and resist strict interpretations.

[59] Report of the United Nations Conference on the Human Environment, Held in Stockholm from 5 to 16 June 1972, UN Doc A/CONF.48/14/Rev.1 (1973).

[60] Report of the United Nations Conference on Environment and Development, Held in Rio de Janeiro from 3 to 14 June 1992, UN Doc A/CONF.151/26 Vol. I (12 August 1992) (‘Rio Declaration’).

[61] Ibid.

[62] Ibid.

[63] Ibid Resolution 1, Annex II.

[64] In addition to these, the UN has adopted a number of instruments that relate to specific aspects of sustainable development. These include the United Nations Millennium Declaration, GA RES 55/2, UN GAOR 55th session, 8th plen mtg, Agenda Item 60 (b), UN DOC A/RES/55/2 (8 September 2000); as well as its follow-up Transforming our world: the 2030 Agenda for Sustainable Development, GA RES 70/1, UN GAOR 70th session, 4th plen mtg, Agenda Items 15 and 116, UN DOC A/RES/70/1 (25 September 2015); and the United Nations Framework Convention on Climate Change, opened for signature 4 June 1992, 1771 UNTS 30822 (entered into force 21 March 1994).

[65] Report of the United Nations World Summit on Sustainable Development, Held in Johannesburg from 26 August to 4 September 2002, UN Doc A/CONF.199/20 (2002).

[66] The Future We Want, GA RES 66/288, UN GAOR 66th session, 123rd plen mtg, Agenda Item 19, UN DOC A/RES/66/288 (27 July 2012) (‘The Future We Want Resolution’).

[67] Stephen A Roosa, Sustainable Development Handbook (The Fairmont Press, 2nd ed, 2010) 35–79. See also: The Future We Want Resolution para 1, which pledges to ensure ‘the promotion of an economically, socially and environmentally sustainable future for our planet and for present and future generations’.

[68] See also Principle 7 of The Future We Want Resolution according to which States must ‘conserve, protect and restore the health and integrity of the Earth’s ecosystem’.

[69] The Future We Want Resolution para 4.

[70] Ibid para 6.

[71] Ibid paras 8-9.

[72] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd session 183rd plen mtg, UN Doc A/810 (10 December 1948).

[73] Communication from the Commission on A Sustainable Europe for a Better World: A European Union Strategy for Sustainable Development, [2001] COM(2001)264 final, 2, 2-3.

[74] The Council of the European Union Renewed EU Sustainable Development Strategy, No 10917/06 (9 June 2006) 2:

[The principle of sustainable development is] an overarching objective of the European Union set out in the Treaty, governing all the Union’s policies and activities. It is about safeguarding the earth's capacity to support life in all its diversity and is based on the principles of democracy, gender equality, solidarity, the rule of law and respect for fundamental rights, including freedom and equal opportunities for all. It aims at the continuous improvement of the quality of life and well-being on Earth for present and future generations.

[75] Ibid.

[76] Ibid.

Safeguard the earth's capacity to support life in all its diversity, respect the limits of the planet's natural resources and ensure a high level of protection and improvement of the quality of the environment. Prevent and reduce environmental pollution and promote sustainable consumption and production to break the link between economic growth and environmental degradation.

[77] Ibid. ‘Promote a democratic, socially inclusive, cohesive, healthy, safe and just society with respect for fundamental rights and cultural diversity that creates equal opportunities and combats discrimination in all its forms.’ Ibid.

[78] Ibid. ‘Promote a prosperous, innovative, knowledge-rich, competitive and eco-efficient economy which provides high living standards and full and high-quality employment throughout the European Union.’

[79] Ibid.

‘Encourage the establishment and defend the stability of democratic institutions across the world, based on peace, security and freedom. Actively promote sustainable development worldwide and ensure that the European Union’s internal and external policies are consistent with global sustainable development and its international commitments.’

[80] Ibid 4-5.

[81] Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and The Committee of the Regions on Mainstreaming Sustainable Development into EU Policies: 2009 Review of the European Union Strategy for Sustainable Development, [2009] COM(2009) 400 final, 2, 14.

[82] This stance has been confirmed time and time again in many policy documents. The Eco-innovation Action Plan for instance clearly links eco-efficiency to environmental and climate change concerns: Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and The Committee of the Regions: The Eco-Innovation Action Plan (Eco-AP), [2011] COM(2011) 899 final, 2, 9-10. See also the roadmap to resource efficiency in which the vision for a resource efficient Europe is described as follows: ‘By 2050 the EU's economy has grown in a way that respects resource constraints and planetary boundaries. ...All resources are sustainably managed... Climate change milestones have been reached’: Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and The Committee of the Regions: Roadmap to a Resource Efficient Europe, [2011] COM(2011) 571 final, 1, 3 (emphasis added).

[83] Jill Jäger, ‘Risks and Opportunities for Sustainability Science in Europe’ in Carlo C Jaeger, J David Tàbara and Julia Jaeger (eds), European Research on Sustainable Development - Volume 1: Transformative Science for Sustainability (Springer-Verlag, 2011) 187, 190–192.

[84] Tom Dedeurwaerdere, Sustainability Science for Strong Sustainability (Edward Elgar Publishing, 2013) 11.

[85] Ibid 29.

[86] Obviously it is not easy to determine the limits of substitutability: on what criteria should it be based? Some refer to the preservation of living systems over time, others to the maintenance of each capital independently, while others argue that no substitution at all is permitted. This highlights the limits of scientific knowledge and the need to integrate other types of knowledge such as local knowledge, a process proponents of sustainability refer to as interdisciplinarity and transdisciplinarity. It should indeed be kept in mind that respecting natural thresholds and limits is something dynamic that needs to constantly be re-enacted and re-performed, so that categories like weak or strong sustainability are not static but on the contrary, dynamic.

[87] Dedeurwaerdere, above n 84, 17-18.

[88] Ibid 18.

[89] Ibid.

[90] Ibid.

[91] Paul M Weaver, ‘Pragmatism and Pluralism: Creating Clumsy and Context-Specific Approaches to Sustainability Science’ in Carlo C Jaeger, J David Tàbara and Julia Jaeger (eds), European Research on Sustainable Development - Volume 1: Transformative Science for Sustainability (Springer-Verlag, 2011) 173, 177.

[92] Ibid.

[93] For example, even though carbon emissions from fossil fuels have increased more slowly than the increase in economic activity, they were still 40 % higher in 2007 than in 1990: Dedeurwaerdere, above n 84, 17-22.

[94] Cuijpers and Koops, above n 17, 27-28.

[95] Dedeurwaerdere, above n 84, 21.

[96] Sanjay Goel et al, Smart Grid Security (Springer, 2015) 42; Kloza, Van Dijk and De Hert, above n 1, 16.

[97] Dedeurwaerdere, above n 84, 21.

[98] Cuijpers and Koops, above n 17, 31.

[99] Dedeurwaerdere, above n 84, 22.

[100] For some theoretical proposals as to what it might look like, see Nick Srnicek and Alex Williams, ‘#Accelerate: Manifesto for an Accelerationist Politics’ in Ray Mackay and Armen Avanessian (eds), #ACCELERATE# the accelerationist reader (Merve Verlag, Urbanomic, 2014) 347; Ray Brassier, ‘Accélérer La Raison’ in Laurent de Sutter (ed), Accélération! (Presses Universitaires de France - puf, 2016) 157; Yves Citton, ‘Accélérer L’écologie’ in Laurent de Sutter (ed), Accélération! (Presses Universitaires de France - puf, 2016) 205.


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